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The State of Emergency

If Trump wanted to give himself sweeping new powers, could anyone stop him?

Among the many ways in which Donald Trump’s presidency has deranged our traditional understanding of the way the world works, there’s what might be termed the great ever-renewable metanarrative of Trumpism: the sense of perpetual hair-trigger emergency that now surrounds our executive branch and the siege-minded right wing of our politics generally. From the random threats of tariffs on Mexican trade to a non-existent border crisis to the founding of voter fraud commissions to the vicious, child-killing protocols of family separation at the border, the Trump moment perhaps represents the high-water mark of scarcely modulated panic as a governing philosophy. 

But, as is the case with many other Trump pathologies, this one is deeply rooted in the national right-wing psyche, and draws much of its force from the cult of unchallenged executive power that was erected around the high-paranoia prosecution of the American Cold War. The convergence of the apocalyptic executive prerogative founded in the 1950s with the spiteful, suggestible, and counter-empirical crusading spirit of Trumpism has produced a little-noted and all-too-real crisis in the conduct of the American presidency, which we’re now watching unfold in elaborate and chilling new variations in real time.

And the most potentially disastrous product of this unholy alliance would be a vigilante state empowered to apprehend and detain designated enemies of the state—in Trump’s case, undocumented immigrants—at its virtual whim. This might sound like alarmist hyperbole cribbed from an episode of Black Mirror or The X-Files, but the simple truth is that all of the legal authority for a United States president to order federal law enforcement, or even the military, to arrest and detain non-citizens is already written up. It exists, even if nowhere else, in the sheaf of emergency legal orders to be signed by the acting president in the wake of a nuclear war or other national emergency.

Rounding up non-citizens is among the very first things a post-disaster government was expected to need to do after such an event. And there is no doubt that today’s federal government needs no paper forms to gather information on who lives where; the National Security Agency and other data-defense entities are widely and credibly believed to have unimaginable amounts of vital information about, well, everyone.

So: What, exactly, is a federal emergency? Contingency planning has historically been drawn up around the unspoken assumption that the emergency was a nuclear exchange with the Soviet Union. That one is obvious. The real question, the one that has no simple answer, is what else counts as an emergency.

The Insurrection Act—originally ratified in 1807—references “lawlessness, insurrection, and rebellion.” One of the last publicly acknowledged continuity of government documents (Homeland Security Presidential Directive HSPD-20 signed by George W. Bush in 2007) develops its authority around a  “catastrophic emergency”—defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.”

Disruption? Lawlessness? That is exactly the kind of subjective terminology that a properly motivated chief executive could make an argument for applying to a broad range of situations—particularly a president who does not seem to care if the arguments he makes are logical, legal, or even comprehensible.

Conservatives love using words like “crisis” or “emergency” around immigration. It serves the dual purpose of keeping a Fox-and-Breitbart–addled base believing that the phony moral panic at our southern border is an actual existential threat and—more ominously—priming the political climate for more drastic and unaccountable executive action against individual immigrants. Curiously, though, the body of precedent most likely to be deployed in the service of such sinister aims was inadvertently exposed by a trio of immigrants in a tiny hamlet in rural North Carolina, back in the Cold War’s heyday.

As most schoolkids and casual viewers of The Americans know, the American Cold War was a decades-long boon for the paranoia-industrial complex—but the particular specifications of this mobilization have only come episodically into public view. We do know this much: As tensions continued mounting with the Soviet Union, the American government erected a multibillion-dollar leviathan of bunkers, federal compounds, communications infrastructure, and military command-and-control redundancies. This elaborate garrison state was put in place to allow the federal government to function after a nuclear attack. (The history of this mania was compiled by Garrett Graff in his 2017 book Raven Rock: the U.S. Government’s Secret Plan to Save Itself—While the Rest of Us Die.) In Washington and Moscow alike, the reigning consensus held that the states that could best engineer the destruction of most human life on earth should be rewarded with a sturdy post-apocalyptic infrastructure to continue carrying out all their genius planning.

On April 17, 1963, a midlevel bureaucrat, a cog in this great nuclear preparedness machine whose name is now lost to history, arrived at a nondescript building in Martinsburg, West Virginia, for another day of what must have been a staggeringly boring job. It was his duty to sit in Martinsburg and, ideally, live through the destruction of Washington, D.C. He was the so-called relocation officer for the Immigration and Naturalization Service (INS)—the person meant to assume the duties of his agency when everyone in Washington was dead.

Such relocation personnel were distributed around the so-called “Federal Arc” in Maryland, West Virginia, and Virginia. Since the evacuation of Washington was unlikely, even for top officials like cabinet officers, every federal department designated a second site for officials to gather on warm standby. For decades the people who staffed these facilities mostly sat there and existed. They completed checklists, rotated supplies, and waited for Armageddon.

Of course, the advent of accurate ICBMs and thermonuclear warheads made it unlikely that anyone in Martinsburg would survive any attack on Washington. And even if they did, would there be anyone left for them to talk or give orders to afterward?

That is the lesson driven home by analysts such as Graff, Douglas Keeney (The Doomsday Scenario, 2002), or David E. Hoffman (The Dead Hand, 2009)—nuclear survival planning was Kabuki theater. In all but the most limited scenarios—say, one rogue submarine firing a single weapon—government would likely cease to function beyond the local level.

But they still planned. That is what bureaucracy does: It plans. It makes policies, even if those policies are unlikely to be used.

Some of the plans these cipher administrators came up with are the stuff of nightmares. Indeed, what the surviving federal government had planned for non-citizens living in the U.S. in the aftermath of a national emergency makes Japanese internment during World War II seem like a small-scale operation in comparison.

Banner Elk, North Carolina, in the shadow of the Blue Ridge Mountains, is home to 1,100 people today; in 1963 it had fewer than 800. One day in April of that year, three Cuban immigrants—legal residents of the United States but not citizens—found, for reasons lost to history, that life had somehow put them in Banner Elk.

As the law required, the three Cuban men presented themselves at the post office to complete forms to register their presence with the INS. But the forms they received were weird. They dutifully filled them out, but wondered why 21 pages of detailed personal questions were necessary. The postal clerk fingerprinted them and, per instructions on the paperwork, mailed the documents to that same federal building in Martinsburg, West Virginia. Attention: Immigration and Naturalization Service.

This is the paperwork that, on April 17, gave our anonymous INS man in Martinsburg perhaps the only interesting day he ever had at work. The postal clerk, it turned out, had not given the three Cuban men the standard, dull forms for newly arrived resident aliens. He accidentally gave them forms with names like AE-2 APPLICATION FOR CERTIFICATE OF IDENTITY.

He gave them forms secretly stored at every post office in the country, to be distributed only upon an order from the Justice Department after a nuclear war. The purpose of the form was to enable the INS, or any other functioning remnant of the federal government, to locate and round up immigrants. The Martinsburg Man stared in disbelief for a moment before calling the FBI. He was looking at something he was not supposed to see unless World War III occurred. [1]

[1] The Banner Elk incident became public in 2011 pursuant to the release (FOIA #1145592- 000) of the FBI file, “Defense Plans of Department of Justice: 1955-1982.”

The hapless Banner Elk postman had simply grabbed the wrong form—but in doing so, he unintentionally revealed the existence of secret plans, drawn up at the highest levels of government, to suspend due process in an emergency.

This sort of imperial power is always at the elbow of a sitting president. With a flick of the pen, he can unleash the legal paperwork ordering the suspension of constitutional rights, the nationwide arrest of foreigners, and other sweeping emergency actions is never more than a few feet away from the president. He has access to them right now.

The briefcase full of nuclear launch codes that follows the president is well known, a staple of political thrillers and news coverage. It’s called the “Nuclear Football,” incidentally, because it was developed under a project code named “DROPKICK.”

Few realize that the briefcase also contains a number of pre-written, beyond-secret presidential orders to be available in a national emergency. They await only the signature of whoever is acting as the president when the time comes. Past versions of these orders, like the Kennedy-era Executive Order 11002, included ominous names like “Emergency Detention Program” and “Handling of Dangerous Nonenemy Aliens.”

The emergency orders include two astounding documents—thankfully never implemented—called the “Master Arrest Warrant” and “Master Search Warrant.”[2] Once approved, these directives would give federal authorities carte blanche to arrest and detain anyone they wanted to without the hindrance of habeas corpus or due process. The Bureau of Prisons maintained on standby several large detention centers in the West and Southwest (Why does that sound familiar?) to be filled with communist subversives per the provisions of the McCarthy-era Enemy Detention Act of 1950 (repealed in 1971) in an emergency.

[2] The existence of these written but unexecuted warrants was made public by the Church Committee; see 94-755, 94th Congress, 2nd Session Senate, April 26, 1976 “Intelligence Activities and the Rights of Americans” p.55

There is no way of knowing exactly what emergency orders accompany the president today. They are among the most secret documents in existence. We can be certain that they are there, because their existence in earlier eras is now a matter of public record, and it is inconceivable that the federal government simply stopped planning for contingencies. Congress and the Bush administration are known to have updated these procedures as recently as 2007. The White House maintains a website on the topic. It is difficult to imagine that emergency legal orders enabling the detention of non-citizens once were a part of such planning but now are not; indeed, there’s growing evidence that they’re poised to play a very troubling role in future government operations.

For now, though, these documents remain only hypothetical. They cannot be signedenacting sweeping emergency powers for federal law enforcement—unless there is a national emergency.

And the forces likely to produce such an executive-branch appraisal of immigration matters are coming more clearly into view. The federal courts have exercised some modicum of restraint on the Trump administration’s vigorous targeting of immigrant non-citizens living in the United States today as well as its border policies for asylum seekers. But as the 2020 presidential election campaign intensifies and Trump perhaps begins to feel pressure, it is certain that more aggressive border and immigration decisions are forthcoming. Anti-immigrant sentiment is the default setting of nationalist politics—the issue that works when nothing else does.

One pundit encouraged Trump to be “bold” against what conservatives characterize as the immigration “crisis.” Not that he needs the encouragement; with Stephen Miller supplying the pseudo-legal justifications, attacking immigrants and touting the border wall are nearly the only things Trump does with legitimate enthusiasm in a job that mostly seems to bore him.

Last week someone gave Trump the idea of using the 1807 Insurrection Act to deputize the military for domestic law enforcement against the immigration “crisis. That is how desperate Trump’s clique is to come up with new ways to use executive power to lash out at non-citizens and asylum seekers. To refer to a law passed 212 years ago means that someone—someone with the initials “Stephen Miller” in this case—is digging very, very deep into the minutiae of federal laws to find new ways to provide legal cover for Trump’s agenda.

Although the similarly venerable Posse Comitatus Act (1878) forbids the use of the U.S. military for domestic law enforcement, it does not cover the use of the National Guard when commanded by state governors. And it certainly doesn’t cover what sort of ways the president could use the military in an “emergency.” Trump has already attempted to circumvent the political process to build his border wall through the Department of Defense. He sees ordering the Army to do it as an ace-in-hole solution when he is stymied by the courts or Congress.

Lest I still seem vaguely like a cranky minor character in an Oliver Stone film, let me be very clear: The point here is not that the president of the United States is about to “declare martial law” or some such. The point is that the White House clearly is getting more creative in its attempts to find legal justifications for its anti-immigrant agenda. That is worrisome because all of the authority a president would need to order the arrest and detention of non-citizens already exists. It has always existed, awaiting an emergency and a signature.

Worse, it is now impossible to have faith that other institutions of the federal government could or would restrain Trump in an attempt to declare an “emergency” and give himself expansive, sweeping powers. Congress, even with a Democratic-led House, has not shown any inclination to challenge him. It talks, it furrows its brow, it schedules hearings, it makes grave faces. And of course, congressional Republicans are all but marching in lockstep in support of Trump regardless of what he does; the Democratic leadership is busy focus-grouping how challenging Trump might play with diner customers in Ohio.

Would the courts continue to serve as a check on Trump in this scenario? The conservative bloc on the Supreme Court was hand-picked at the behest of the Federalist Society chiefly for their accommodating views on executive power. And besides, it isn’t clear any court could stand in the way of a president fully committed to the premise of declaring an emergency. Among all the government planning for Doomsday, no emergency relocation site for the Supreme Court was established. Once a president assumes emergency powers, there is no need for courts.

The biggest cause for concern is Trump himself. It is impossible to say with any conviction at all, “Trump wouldn’t do that.” What if he gets desperate? What if he gets irrationally angry? What if he’s faced with the possibility of being indicted if he loses the election?

I was born in 1978, the last age cohort to really remember the Cold War. I grew up obsessed with it. Knowing what kind of plans the government has in place for the aftermath of World War III—something few Americans ever think about—makes it feel ominous when a nihilistic president starts digging deep into the laws to find novel legal justifications for his actions. All the legal authority any president needs to arrest or detain non-citizens in the United States is there. It only awaits a signature. Until now, Americans never legitimately had reason to consider that a president would be insane enough to use such power except in a true emergency.

Now, however, we must consider just such a possibility—that the kind of power presidents have available in the aftermath of a nuclear war are now available for any “catastrophic emergency” defined largely by the president himself. We are also stripped of previously comforting mantras courtesy of the separation of powers, such as “Congress or the Supreme Court would stop him.” If we learn anything from the Trump years, it will be that the institutions of constitutional government and the rule of law are not sufficient to curtail the actions of a sociopathic outsider who could not care less about the norms, rules, and culture of American government.

Trump’s rhetoric about immigrants matters. All the words that have stoked the right’s vernacular sense of permanent emergency at the border matter. Because in an extreme scenario, the words are what become the crucial legal justification for a president to do what we once considered unthinkable. The Cold War left us with the legacy of an enormous bureaucracy erected to survive Doomsday. None of it would have worked. If the USSR lobbed a hundred or a thousand nukes at us, survivors would be too busy digging for water with stone tools to worry about laws. But that legacy created an opportunity for abuse, provided the right authoritarian-figure-eager came along.

And now he’s here. Continued escalation of the rhetoric and actions targeted at immigrants, non-citizens, and asylum-seekers is the kind of behavior written off by the professional chattering class in 2016 as “just Trump being Trump.” “Take him seriously, not literally,” Republican savants counseled us back then. But the reckless talk of our sociopath-in-chief can’t be so easily dismissed anymore. It is not funny. He’s not kidding. And I dread the day when he and Stephen Miller discover that there is a true “nuclear option” that will enable them to pursue their xenophobic agenda to its logical end.